Ontario judge refuses family's plea to keep brain dead woman on life-support

In a potentially precedent-setting decision, an Ontario court has rejected a Toronto-area family's plea to keep their 27-year-old daughter, who has been declared brain dead, on life-support.

Taquisha McKitty's father disappointed in decision, saying 'she's never stopped being alive'

Taquisha McKitty was declared brain dead in September 2017, and has been on life-support since. Now, an Ontario judge has ruled she can be taken off the mechanical ventilator. (Instagram)

An Ontario court has rejected a Toronto-area family's plea to keep their 27-year-old daughter, who has been declared brain dead, on life-support.

Taquisha McKitty's parents were seeking an order to keep her on a mechanical ventilator, arguing she continues to show signs of life and that her Christian fundamentalist beliefs say she's alive as long as her heart's still beating. However, the  Ontario Superior Court of Justice ruled Tuesday, in a complex and potentially precedent-setting decision, that McKitty can be considered dead and can be removed from life-support.

Stanley Stewart, her father, told reporters his family is disappointed with the decision. He says it ignores McKitty's "ongoing biological functions," like a strong heartbeat, the ability to heal from injuries and shed tears.

"If you touch her, she still moves," Stewart told reporters at the Glorious Church Breakthrough Temple in Brampton, Ont.

"As far as our family's concerned, she's never stopped being alive."

Stanley Stewart, Taquisha McKitty's father, says he's disappointed in the ruling. 'If you touch her, she still moves,' he told reporters on Tuesday. (Trevor Dunn/CBC)

However, Shaw's decision notes doctors have found "uncontroverted medical evidence" that there's no bloodflow to McKitty's brain and that it will not be able to recover.

The movements, the decision notes, originate in the spinal cord and "do not involve any brain activity." That has been proven by a series of medical tests, Shaw wrote.

Ontario doesn't define death

Unlike four other Canadian provinces, including Manitoba and Nova Scotia, Ontario does not have a statutory definition of death, the court decision notes. Instead, death in Canada is determined by physicians in accordance with accepted medical practice.

"There is no legislation that requires physicians to consider an individual's views, wishes or religious beliefs as factors to be considered in the determination of death," the judge, Lucille Shaw, wrote in her decision.

Hugh Scher, the lawyer representing McKitty as well as an Orthodox Jewish family in a similar case, issued a statement criticizing the judge's decision. "It leaves the determination of death exclusively to doctors without any means of oversight or consideration of the protections or values of the Canadian Charter," he said. 

Stewart said his family is considering appealing the ruling, saying he believes it "basically giving doctors the power to play God."

In intensive care for nearly a year

McKitty, who has a young daughter, has been on life-support since last September, when she went into cardiac arrest following a drug overdose in Brampton, Ont. She was declared neurologically dead by doctors shortly after.

Hugh Scher, the lawyer representing McKitty and her family, has argued the 27-year-old, pictured here with her daughter, should be treated like someone with a 'severe neurological impairment.' (Instagram)

Fearful that the hospital was trying to pull the plug to secure an organ donation, the McKitty family launched legal proceedings to keep her hooked up to life-support and an injunction was granted. 

That has resulted in McKitty being kept in the intensive care unit at Brampton Civic Hospital for nearly a year, despite the fact a doctor declared her dead on Sept. 20, 2017, and completed a death certificate on Sept. 21, certifying that she had died from a drug overdose.

2nd case also before the courts

Shalom Ouanounou, 25, was declared brain dead following a severe asthma attack last summer, but his heart kept beating for months in hospital. (Submitted by Hugh Scher)

The McKitty case bears striking similarities to another Toronto-area case still awaiting a decision.

Shalom Ouanounou, a 25-year-old devout Orthodox Jewish man, was declared brain dead just days after McKitty following a severe asthma attack.

Ouanounou's family sought an injunction arguing that he should be kept on life-support indefinitely at Toronto's Humber River Hospital on the grounds of his belief in a Jewish law that stipulates death is when the heart stops beating.

In March, Ouanounou died in hospital despite being on life-support.

"Shalom's heart stopped, and he stopped breathing … which is the definition of death under Jewish law and under Canadian law in most instances," said Scher.

Despite Ouanounou's death, Justice Glenn Hainey of the Ontario Superior Court is still reviewing the family's legal arguments. It's unclear how Tuesday's ruling will affect Hainey's decision.    

With files from Kate McGillivray and Trevor Dunn